‘Yefat Toar’ and Morality

Seeing as others having spoken slanderously about Rabbi Krim and the Torah, it is our duty to explain the morality and logic of the law of ‘yefat toar’ * Until modern times, even up to the last century, captives were cruelly abused, often ending in death * The Torah, in contrast to other cultures, demands total self-restraint from illicit relations * The permission to marry a ‘yefat toar’ is ‘bediavad’ under defined conditions, and with the Torah’s warning not to do so * In view of the world’s moral progress, the permission to marry a ‘yefat toar’ is completely null and void * Accusing the Torah of supporting rape is like accusing a doctor of supporting illness

Slander of the Torah and Israel

In recent months we have witnessed a libelous defamation of our holy Torah and the people of Israel who teach its’ values ​​to the world by the secular media, together with women MK’s from the leftist Meretz party, concerning the issue of ‘eshet yefat toar’ (a non-Jewish woman captured in battle) and the appointment of Rabbi Krim as the next Chief Rabbi of the I.D.F.

Although most of the blame lies with the slanderers who failed to delve into the Torah, we are also responsible to explain the Torah’s words and values ​​completely and precisely, while emphasizing its Divine vision and logic, so that any decent person is capable of understanding just how true and compassionate the Torah is, and to what extent tikkun olam (repairing the world) is dependent on its study and fulfillment.

The Status of Those Defeated in War in the Past

In ancient times, the victors of wars would do whatever they pleased with those they vanquished. Any type of abuse was considered acceptable, both legally, and morally. Those who fell in captivity were considered the property of the victors. Many of them were killed and publicly abused (for that reason, King Saul asked to be killed with his own the sword, rather than be captured by the Philistines). Some were slaughtered as a sacrifices on the altars of their gods, while others were taken for murderous games and used as gladiators in wars against wild beasts or between themselves, until death.

Usually, a large percentage of the men were killed, and the rest were sold as slaves. The beautiful and young women were “fortunate”: they weren’t killed, but rather, first the soldiers would rape them as they wished, and when they were finished with them, the women were thrown into a cage of prostitutes, or sold as slaves or concubines. This was the norm; therefore, it was common practice among the nations that when they saw defeat was imminent, the women would adorn themselves in order to be appealing to the victorious soldiers, and thus, save their lives. Many of them harbored the hope that perhaps one of the enemy soldiers would covet and safeguard her, wishing to use her as a concubine. And perhaps later on, she would even be able to improve her standing and be legitimately considered his second wife, or maybe even his first wife. And if not, then at the very least she might have been sold as a concubine to an old, sick and crippled man who would not abuse her as much, and if she was lucky enough to bear him a child – he might even support her, and save her from dying of starvation. Parents would even help their own daughters to adorn themselves seeing as it was the only chance to save them and possibly have their offspring continue to exist in the world because, as a general rule, the futile were killed so as to reduce the number of people needed to be fed, for in many instances wars were fought over means of sustenance, and consequently, one of the objectives was to kill the vanquished, and inherit their fields.

Some women even came to the throne in this manner, such as the captive Martha Skavronskaya. Initially, a soldier took her captive and she became his mistress; next, his commander coveted her, and took her as his mistress. Afterwards, the commander in chief took her for himself, and when the notable Minister Menshikov set eyes on her, he took her for himself. When the Caesar, Peter the Great – the symbol of Russian enlightenment, saw her – he craved her, and took her for himself. Not only that, but so that his first wife would not cause problems, he put her in a convent until the end of her life, officially married the captive woman, and renamed her Catherine the First. When he died, she became the governess of the Russian empire for two years until her death (1727).

The Custom in Europe after the Eradication of Slavery

For the last hundreds of years, along with the eradication of slavery in Europe, gradual progress was made in the legal status of individuals in developed countries. Captives from countries defeated in war were no longer sold as slaves, however, they could indeed be made to serve hard labor for the kingdom, or the conquering country. This helped the winning countries base their economies, as the Soviet Union did with hundreds of thousands of German prisoners after World War II.

As far as looting and rape was concerned, until the end of World War II it was customary that for three days following the occupation of a city, law and order was slightly overlooked so that soldiers were able to plunder and rape women freely, on the condition their brutality was not overly exaggerated. When the first three days were over, the laws of war against looting, rape and murder started to be enforced. Only in 1949, the Fourth Geneva Convention was agreed upon, establishing protection for civilian populations in times of war.

The Law of ‘Eshet Yefat Toar’

Following this primer, we can now address the law of ‘eshet yefat toar’ in the Torah, and understand to what extent the Torah uplifted the Jewish nation and mankind, by determining restrictions for the complicated and difficult situation of the cruelty of war.

Ideally, in times of war a soldier is required to guard himself against any thoughts of sexual immorality, and think only about saving Israel and victory in war (Rambam, Laws of Kings and Wars 7:16). This is included in the general mitzvah of guarding the sanctity of the camp, as it says: “When you go out as a camp against your enemies, you must avoid everything evil… because God your Lord makes His presence known in your camp, so as to deliver you and grant you victory over your enemy. Your camp must therefore be holy. Let Him not see anything lascivious among you, and turn away from you”(Deuteronomy 23:10-15).

After victory, during the process of taking women captive, a soldier must ideally guard himself from illicit thoughts. If, nonetheless, he desired one of the women captives, the Torah permitted him to have relations with her one time, provided he does so with the commitment to marry her afterwards, if she so wishes. Some of our Sages (Rabbi Yochanan and Shmuel) were of the opinion that in any event, only after she converted was the soldier permitted to have relations with her, and apparently, this was the l’chatchila (ideal) instruction; but in a bediavad (after the fact) situation, the halakha was determined that a soldier was permitted to have relations with the captive woman one time, with the aforementioned conditions (Rambam, ibid., 8:1; Kesef Mishneh).

The details of the law are as follows: the heter (permission) to have relations with the woman is only in the heat of the battle, at the same time she is taken from her dwelling to captivity; but after being taken captive, it is forbidden for any soldier to touch any captive woman.

The heter is on the condition that the soldier commits to marry her afterwards, as it says: “If you see a beautiful woman among the prisoners and desire her, you may take her as a wife” (Deuteronomy 21:11). Therefore, a soldier is allowed to take only one woman, and no more. Similarly, it is forbidden for him to take a woman for his brother or someone else; rather, only a soldier who coveted a particular woman is allowed to take her for himself.

After having relations with her one time, he is forbidden to have relations with her again until their marriage is arranged. In other words, if the woman captive agrees to enter under the wings of the Divine Presence and convert, and to marry him – she is immediately converted.

If she still had not agreed to convert and marry him, he leaves her to weep in his house for thirty days over her mother and father, and over her religion that she must forsake. And the Rambam added that she is even allowed to publicly worship the idolatry she was accustomed to worship, without talking to her about matters of Jewish faith during the entire month (Moreh Nevuchim III: 41).

After that month was over, if the man decided he did not want to marry her, she must agree to accept the seven Noahide laws and she is released, and it is forbidden for him to keep her as a servant, or sell her to others, as it is said: “If you do not desire her, however, you must send her away free. Since you have had your way with her, you may not sell her for cash or keep her as a servant” (Deuteronomy 21:14). In other words, if it turned out that he did not want her, retrospectively, the first time he had relations with her he violated her, and in order to compensate her, he must set her free.

If after this month he still desired her and she agrees to convert and marry him, she converts and marries. If she did not want to convert and marry him, she remains with him for twelve months, because maybe in the end she will change her mind. If after twelve months she has not consented, she must agree to accept the seven Noahide laws and is released.

A Bediavad Heter

From verses of the Torah, we have learned that the heter is a forced and bediavad approval, as our Sages said: “The Torah only provided for human passions: it is better for Israel to eat flesh of animals about to die yet ritually slaughtered (a doubtful prohibition), than flesh of dying animals which have perished (a definite prohibition)” (Kiddushin 21b). And although it is permitted bediavad, the Torah attempted to distance us from it as best as possible, thus hinting that such marriages will not be blessed and often cause family conflicts and disputes over inheritances, and situations in which the son born out of such a marriage is liable to be wayward and rebellious.

Our Sages termed this as “aveira goreret aveira” (one sin leads to another sin) (Tanchuma, Ki Taytzeh 1), and similarly, Rashi comments: “Scripture in permitting this marriage is speaking only against the evil inclination which drives him to desire her. For if the Holy One, blessed is He, would not permit her to him, he would take her illicitly. The Torah teaches us, however, that if he marries her, he will ultimately come to despise her…and he will ultimately father through, her a wayward and rebellious son. For this reason, these passages are juxtaposed.” Likewise, we find a similar matter occurred to King David with his son Amnon who raped Tamar, and Avshalom who rebelled against his father and sought to kill him (Sanhedrin 21a, Tanchuma, ibid.).

Today the Heter is Null and Void

Indeed, in Arab countries and similar ones, it is still common practice for soldiers to rape women and kill people, and even in Western armies, many soldiers break the law and rape women from occupied or controlled populations. In any event, seeing as the heter of eshet yefat toar is against the evil inclination so as to regulate the behavior of a soldier under cruel and evil societal conditions, thus saving him from transgressing more serious prohibitions, today, thanks to the positive influence of the Torah’s morality the laws of war among Western nations have changed for the better, both from the aspect of the status of members of defeated populations lives’ not being handed over as property to the occupiers, and also, given that military laws are enforced more effectively on soldiers – the heter of eshet yefat toar is null and void. The law has returned to its former position, that it is forbidden for a man and a woman to maintain sexual relations outside the framework of marriage in accordance with halakha.

The Slander and its Correction

Therefore, those who slandered the Torah as if it supports rape, are similar to slanderers of doctors who come to heal, accusing them of causing people to be sick by giving legitimacy to their illness.

Nevertheless, we have learned a great principle from the law of eshet yefat toar. Finding fault with something is easy; knowing how to correct things by means of planting good foundations within a harsh, cruel and complicated reality is called for, and this can be achieved precisely through the Jewish nation.

This article appears in the ‘Besheva’ newspaper, and was translated from Hebrew. Other interesting, informative, and thought-provoking articles by Rabbi Melamed can be found at:
http://en.yhb.org.il/

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